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Nikhat Parveen @ Khusboo Khatoonv.Rafique @ Shillu

Citation:
2026 INSC 399
Date:
21 April 2026
Reading time:
10 min read

Legal Analysis: Nikhat Parveen @ Khusboo Khatoon vs. Rafique @ Shillu

Citation: 2026 INSC 399
Court: Supreme Court of India
Bench: Justice Sanjay Karol and Justice Nongmeikapam Kotiswar Singh (Division Bench)
Judgment Author: Justice Sanjay Karol
Date of Decision: April 21, 2026
Nature of Judgment: Criminal Appeal under Article 136 against High Court order dismissing challenge to denial of maintenance to a child under the Domestic Violence Act.


Synopsis of the Judgment

The appellant (mother) and respondent (husband) married in 2016. A child was born soon after. The appellant sought maintenance under the Protection of Women from Domestic Violence Act, 2005. The respondent disputed paternity and requested a DNA test. The trial court ordered the test, which the appellant consented to without objection. The DNA report confirmed that the respondent was not the biological father. The trial court denied maintenance to the child. The High Court upheld this. The Supreme Court dismissed the appeal, holding that while Section 112 of the Indian Evidence Act (presumption of legitimacy) protects a child born during a valid marriage, that presumption is rebuttable. Where a DNA test has been conducted with the consent of the mother and has attained finality, it must be given effect. The Court distinguished earlier precedents and held that in this case, the DNA test report could not be ignored. However, the Court directed the Women and Child Development Department to visit the child and take remedial measures if necessary.


1. Basic Information of the Judgment

Field Details Case Title Nikhat Parveen @ Khusboo Khatoon vs. Rafique @ Shillu Criminal Appeal No. Arising out of SLP(Crl.) No. 15256 of 2023 Bench Justice Sanjay Karol and Justice Nongmeikapam Kotiswar Singh Date of Decision April 21, 2026 Citation 2026 INSC 399 Appeal From Order dated 17.10.2023 of Delhi High Court in CRLMC No. 4678/2022


2. Legal Framework

Laws Involved:

  • Protection of Women from Domestic Violence Act, 2005 (DV Act): Section 12 (application for reliefs), Section 20 (maintenance orders).

  • Indian Evidence Act, 1872 (IEA): Section 112 (birth during marriage as conclusive proof of legitimacy, unless non-access is shown).

  • Bharatiya Sakshya Adhiniyam, 2023 (BSA): Section 116 (identical provision).

  • Family law principles: Presumption of legitimacy, paternity, DNA testing, best interest of the child.

Precedents Cited (Chronological):

  • Dukhtar Jahan v. Mohd. Farooq (1987) 1 SCC 624 – Courts incline towards upholding legitimacy unless facts are clinching.

  • Goutam Kundu v. State of W.B. (1993) 3 SCC 418 – Five principles: DNA test not as a matter of course; strong prima facie case of non-access required; must consider effect on child; no compulsion to give blood sample.

  • Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik (2014) 2 SCC 576 – DNA test scientifically accurate; when there is conflict between presumption and DNA report, the truth must prevail; presumption must yield to proof.

  • Dipanwita Roy v. Ronobroto Roy (2015) 1 SCC 273 – DNA test permissible to substantiate allegation of infidelity; it is the most legitimate and scientifically perfect means.

  • Aparna Ajinkya Firodia v. Ajinkya Arun Firodia (2023) SCC OnLine SC 1242 – Even DNA test cannot escape the conclusiveness of Section 112 if non-access is not proved; child’s right to privacy and identity must be protected.

  • Ivan Rathinam v. Milan Joseph (2025) SCC OnLine SC 200 – Balancing test: (i) insufficiency of evidence; (ii) positive finding on balance of interests before ordering DNA test.

What the Judgment is About: The judgment resolves the conflict between the conclusive presumption of legitimacy under Section 112 of the Evidence Act and the scientific accuracy of DNA testing in the context of a child’s claim for maintenance. It holds that where a DNA test has been conducted with the consent of the mother and has attained finality, and the mother has not challenged the report, the DNA evidence must prevail over the presumption. The case is distinguished from Aparna Ajinkya Firodia (where the test was not conducted) and aligned with Badwaik (where the test was conducted and final).


3. Relevant Facts

  • Employment as domestic help: The appellant worked as domestic help in the respondent’s residence for three years. During this period, the respondent established a sexual relationship with her on the pretext of marriage.

  • Marriage (02.03.2016): The parties got married.

  • Birth of child (01.04.2016): A child was born to the appellant.

  • Matrimonial discord: The relationship soured quickly.

  • Complaint under DV Act (14.07.2016): Appellant filed an application under Section 12 of the DV Act seeking interim maintenance of ₹25,000/- per month, protection orders, and return of stridhan.

  • Respondent’s prayer for DNA test: The respondent denied paternity and sought a DNA test.

  • Trial court order: Directed DNA test. The appellant did not object; she consented.

  • DNA test report (08.05.2017): Confirmed that the respondent was not the biological father of the child.

  • Trial court order on maintenance: Rejected the application for interim maintenance, relying on the DNA report and also noting that the appellant had concealed her source of income.

  • First appeal: Dismissed; the appellate court noted that the prayer for maintenance of the child was no longer pressed, and upheld the finding on concealment.

  • High Court order (17.10.2023): Held that the presumption under Section 112 would have been available only if the DNA test had not been conducted. Since the DNA test was on record and had attained finality, the child was not entitled to maintenance. However, the High Court remanded the matter to the trial court for fresh consideration of the appellant’s own maintenance.

  • Supreme Court appeal: Appellant challenged the denial of maintenance to the child.


4. Issues

  1. Whether the presumption of legitimacy under Section 112 of the Indian Evidence Act (conclusive proof) must prevail over a DNA test report that conclusively establishes that the husband is not the biological father of the child.

  2. Whether a child born during the subsistence of a valid marriage can claim maintenance from the husband when a DNA test (conducted with the mother’s consent and not disputed) proves that the husband is not the biological father.

  3. What is the correct legal position after the conflicting observations in Badwaik, Aparna Ajinkya Firodia, and Ivan Rathinam.


5. Ratio Decidendi

  • DNA test conducted with consent and finality – must be given effect: The Court held that the present case is distinguishable from Aparna Ajinkya Firodia (where the Court refused to order a DNA test in the first instance). Here, the DNA test was already conducted, the appellant consented to it, and she never challenged the report. The report has “attained finality”. Therefore, the principle in Nandlal Wasudeo Badwaik applies – where there is a conflict between a legal presumption and a scientifically accurate DNA report, the truth must prevail, and the presumption must yield (Para 9).

  • No error in High Court’s denial of maintenance to the child: The High Court correctly held that the child could not claim maintenance from the respondent because the DNA report conclusively established that the respondent was not the biological father. The appellant’s challenge based on Section 112 was without merit (Para 10).

  • Distinction between ordering a DNA test and relying on an existing DNA test: The Court noted that the hesitation expressed in Goutam Kundu, Aparna Ajinkya Firodia, and Ivan Rathinam applies when a court is asked to order a DNA test in the first instance. However, once the test is conducted (with consent) and the report is on record without challenge, the court cannot ignore it (Para 8-9).

  • Child’s welfare – separate direction: While dismissing the appeal, the Court expressed concern for the child’s well-being and directed the Women and Child Development Department to visit the appellant’s residence, assess the child’s situation (education, nutrition, health, basic living standards), and take remedial measures if lacking (Para 11).


6. New Legal Principles Established / Reiterated

  • Consent to DNA test waives the protection of Section 112: A mother who consents to a DNA test and does not challenge its result cannot later rely on the presumption of legitimacy under Section 112 to claim maintenance from the husband for the child.

  • Finality of DNA test report trumps presumption: Once a DNA test report has attained finality (no challenge, no request for retest), it becomes conclusive evidence of paternity (or non-paternity) and cannot be ignored by the court, even if the child was born during a valid marriage.

  • Distinction between “ordering” a DNA test and “relying on” an existing DNA test: The strict conditions for ordering a DNA test (strong prima facie case, non-access, best interest of the child) do not apply when the test has already been conducted with the consent of the parties and the report is on record unchallenged.

  • Child’s welfare is not solely dependent on maintenance from a non-biological father: The Court directed the State to step in to ensure the child’s well-being, indicating that the State has a residual responsibility even when a private claim fails.


7. Court’s Analysis and Examination of Concepts

  • Evolution of judicial opinion on Section 112: The Court traced the case law from Dukhtar Jahan (strong presumption in favour of legitimacy) to Goutam Kundu (five principles, DNA not as a matter of course) to Badwaik (DNA prevails over presumption) to Aparna Ajinkya Firodia (even DNA cannot displace presumption without proof of non-access) to Ivan Rathinam (balancing test). The Court noted that the common thread is a “well-placed hesitation to order or to give an imprimatur to orders directing DNA test” (Para 8).

  • Why this case is different: The Court held that the hesitation is not applicable here because the test was not ordered by the court over the mother’s objection; it was conducted with her consent. Moreover, the appellant never challenged the report. Therefore, the “two blockades” from Ivan Rathinam (insufficiency of evidence and balance of interests) are not relevant – the evidence (DNA report) is sufficient and conclusive, and the balance of interests has already been upset by the mother’s own consent (Para 9).

  • Adoption of Badwaik: The Court explicitly followed Badwaik, which held that “when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world to be accurate, the latter must prevail over the former” (Para 7.3, 9).

  • Child’s well-being – not ignored: The Court did not leave the child without any remedy. It invoked the State’s welfare machinery to assess and, if necessary, provide for the child. This is an equitable measure.


8. Critical Analysis

Strengths: The judgment provides a clear resolution to the conflict between legal presumption and DNA evidence by distinguishing between cases where a DNA test is sought (strict conditions apply) and cases where it has already been conducted with consent (the report is binding). It respects the autonomy of the mother (her consent) and the finality of litigation (no challenge to the report). The direction to the Women and Child Development Department is a compassionate step.

Potential concerns: The judgment does not explicitly discuss whether the child could still claim maintenance from the respondent on the ground that the respondent had held out the child as his own or that the child had a legitimate expectation. The Court proceeded purely on biological paternity. However, the child was born only one month after the marriage, which itself raises questions about the timing. The Court also did not address the possibility that the respondent may have known that the child was not his when he married the appellant – but the appellant’s consent to the DNA test and her failure to challenge the report were decisive.

Practical impact: This judgment will be cited in cases where a DNA test has already been conducted (either by court order or by consent) and one party tries to rely on the presumption under Section 112 to ignore the test result. It clarifies that consent to a DNA test is a waiver of the protection of the presumption. It also reinforces that courts should be cautious before ordering DNA tests, but once conducted, the scientific evidence cannot be lightly brushed aside.


9. Final Outcome

Appeal dismissed. The judgment of the Delhi High Court dated 17.10.2023 is upheld. The child is not entitled to maintenance from the respondent. However, the Secretary, Women and Child Development, Government of NCT of Delhi, is directed to depute a person to visit the appellant’s residence to ascertain the well-being of the child (education, nutrition, health, basic living standards) and take remedial measures if lacking. The matter of the appellant’s own maintenance (remanded by the High Court) shall be decided afresh by the trial court.


10. Practical Application (Use in Court)

  • By husbands (respondents): If you are facing a claim for maintenance for a child born during marriage, you may seek a DNA test. However, be aware that courts are reluctant to order a test without a strong prima facie case of non-access. If the mother consents to the test, the result will be binding. Once the test confirms non-paternity, you can rely on it to resist maintenance for the child.

  • By mothers (appellants): Before consenting to a DNA test, consider the consequences carefully. If you consent and the test shows that the husband is not the biological father, you will lose the presumption of legitimacy under Section 112. You will also likely lose any claim for child maintenance from the husband. Only consent if you are confident of the result or if you have independent means to support the child.

  • By courts: When a party requests a DNA test, apply the two-step test from Ivan Rathinam: (i) is there insufficiency of evidence to determine paternity without the test? (ii) after balancing the interests (stigma to child, privacy, dignity of mother vs. right to know biological father), is the test in the best interests? If the mother consents, the test may be ordered more readily. Once the test report is on record and unchallenged, treat it as conclusive on the issue of biological paternity.


11.  Court Lines

“The common thread that has run through all these judgments is a well-placed hesitation to order or to give an imprimatur to orders directing DNA test to be conducted. We entirely agree with this position.” (Para 8)

“It has to be noted that the present case is distinguishable from the prevailing position in Aparna Ajinkya Firodia (supra) since in that case the question before the Court was whether conducting a DNA test was in the best interest of the child or not. In this case the DNA test has been conducted, the appellant consented to the same and has, not even once disputed the conclusion thereof. It has, in other words attained finality.” (Para 9)

“In view of the above discussion and particular the position in Badwaik, we are of the considered view that no error could be pointed out by the appellant in the High Court’s decision denying the grant of maintenance to her daughter.” (Para 10)

“We express concern about the child whose dispute of parentage had made its way up to us. … we direct the Secretary, Women and Child Development, Government of the NCT of Delhi, to depute a person of considerable experience to ascertain details of the residence of the appellant and visit the same to determine the wellbeing of the child.” (Para 11)


12. Legal Strategy Insight

For the mother (appellant/claimant): If you are seeking maintenance for a child born during marriage, do not consent to a DNA test unless you are certain the husband is the biological father. If you have already consented and the test is adverse, you cannot later rely on Section 112. In that situation, focus on other grounds – for example, that the husband treated the child as his own (doctrine of paternity by estoppel or conduct). Also, explore whether the husband has any legal obligation to support the child under other laws (e.g., if he married you knowing you were pregnant). In this case, the mother had no such alternative argument. The better strategy would have been to oppose the DNA test in the first instance by citing Goutam Kundu and Aparna Ajinkya Firodia, emphasising the child’s right to legitimacy and the mother’s right to privacy.

For the husband (respondent): To successfully deny maintenance to a child born during marriage, you need to establish non-paternity. The most effective way is to obtain a DNA test. However, courts will not order a test lightly. Build a strong prima facie case: show that you had no access to the wife during the probable period of conception, or that there is other evidence of infidelity. If the wife consents to the test, the result will be binding. If the test shows you are not the father, you can resist maintenance. Also, be prepared for the court to order some relief for the child from the State, as in this case – you may not be liable, but the child will not be left destitute.

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